The SCC Revisits the Right to Die in Carter v Canada (Attorney General)

Posted By Sabrina Mach

Twenty-one years after upholding a criminal prohibition on physician-assisted suicide (Rodriguez 1993), the Supreme Court of Canada must once again consider the constitutionality of s. 241(b) of the Criminal Code in Carter v Canada (Attorney General). Under s. 241(b), anyone that “aids or abets a person to commit suicide” is guilty of an indictable offence and liable to imprisonment for up to fourteen years. Lee Carter and Gloria Taylor joined with others in bringing this claim challenging the constitutionality of s. 241(b) of the Criminal Code, as well as ss. 14, 21, 22, 222, and 241(a), which collectively, with s. 241(b), prohibit physician-assisted suicide in Canada. Ms. Carter’s mother and Ms. Taylor both suffered from intractable and degenerative diseases.

The Supreme Court heard the Carter case on October 15th, 2014. An overview of the main points in the lower court decisions indicates that the Supreme Court’s decision could radically change the state of assisted suicide in Canada.

The main hurdle for Justice Smith was to assess whether or not Rodriguez was binding precedent. In Rodriguez, the Supreme Court held that s. 241(b) was constitutional because it complied with s. 7 and s. 15 of the Charter. If Rodriguez were binding, then the civil claim would fail. However, Justice Smith found that the emergence of different social facts and legal principles since the 1993 decision allowed her to re-evaluate the constitutionality of s. 241(b). She noted that the right to “life” in s. 7 was not considered in Rodriguez. Neither were the principles of fundamental justice of overbreadth and gross disproportionality. Additionally, Justice Smith found that a violation of s.15, the equality provision, was never properly found in Rodriguez; rather, it was simply assumed to have occurred and was then justified under s. 1.

With respect to s. 7 of the Charter, Justice Smith held that the right to life was engaged because the prohibition had the effect of causing some people to end their lives sooner than they would have if physician-assisted suicide were available. With respect to s. 15, Justice Smith found that the impugned provisions created a distinction on the basis of physical disability. It did so by denying physically disabled individuals access to physician-assisted suicide, which was necessary for them to commit suicide, while able-bodied individuals had no legal restrictions to committing suicide. These violations could not be saved by s. 1. The trial judge declared impugned provisions to be of no force or effect due to their violations of ss. 7 and 15 of the Charter. The declarations of constitutional invalidity were suspended for one year to allow Parliament sufficient time to draft and consider new legislation.

With regards to the risks of physician-assisted suicide, Justice Smith suggested that sufficient safeguards could be put into place, such as employing properly qualified and experienced physicians to assess the competence of patients seeking physician-assisted death, identifying inappropriate influences on the patient’s decision, as well as assessing informed consent.

The majority found that the trial judge was bound by stare decisis to apply Rodriguez. Consequently, for the most part of the judgment, the court reaffirmed the findings established in Rodriguez.

With respect to s. 7, the court held that “life” was already considered in Rodriguez in relation to liberty and security of the person. The ability to make personal decisions regarding one’s body fell under “security of the person”, which made it unnecessary for Justice Smith to consider the right to “life” under s. 7. As for s. 15, they accepted Justice Smith’s finding of a violation, but concluded that it was justified under s. 1 of the Charter. The Court applied the same s. 1 analysis as in Rodriguez, emphasizing that s. 241(b) clearly had a pressing and substantial legislative objective grounded in the need to protect human life, and that it was rationally connected to its purpose. Thus, the provision is constitutionally valid.

Although the Court of Appeal upheld the prohibition, they did suggest that the legislature should consider adding a constitutional exemption where warranted. This exemption might be in favour of “those who are clear-minded, supported in their life expectancy by medical opinion, rational and without outside influence, and protected by a court process” (para 333).

Supreme Court of Canada hearing

The Supreme Court has yet to release its own decision regarding the constitutionality of s. 241(b) and the other impugned provisions. Nevertheless, following the hearing on October 15th, many media sources have already commented on the direction the court will take:

The Supreme Court has a big decision ahead of it – to follow Rodriguez or distinguish from it. Earlier this year, Quebec became the first province to legalize physician-assisted suicide by passing Bill 52, An Act respecting end-of-life care. With the changing political and social climate regarding assisted suicide in Canada, the Supreme Court has a lot to consider. The Harper government may have to brace itself for another tough loss at the Supreme Court.